The Genocide Scholars Association’s Gaza statement twists law and facts

What has the International Court of Justice decided?

One of the statement’s glaring errors is the claim that the International Court of Justice found “it is plausible that Israel is committing genocide in its attack on Gaza.” This could not be further from the truth. The Court has so far made no such finding and made only the point that Palestinians plausibly enjoy rights protected under the Genocide Convention. In a later interview on the BBC, the then-President of the Court (the US judge Joan Donohue) clarified that the Court went to great lengths not to state that it had reached a conclusion that Israel was plausibly committing genocide. In fact the merits of the case are still under judicial consideration. Both South Africa and Israel are still in the process of submitting their arguments and evidence to the ICJ.

The IAGS statement also never acknowledges Hamas as a combatant and thus assumes there is no legal validity for the war, absurdly framing Israel as the aggressor. This is of course a complete inversion of reality. Israel is a sovereign state that is fighting a legitimate and very complex war of self-defence against Hamas, which has been constantly attacking it for over two decades, including firing rockets at Israeli civilians and taking hostages, culminating in the horrific massacres of October 7, 2023. These are all egregious crimes under international law.

The IAGS ignores that Hamas is an organisation that is deeply embedded in the civilian population in the Gaza Strip (and also the West Bank, by the way). As the original Hamas Charter shows, as well as numerous statements from their leaders, Hamas is existentially committed to the culture of jihad that involves not only destroying the State of Israel, but also the killing of as many Jews as possible. As senior Hamas official Ghazi Hamad said, Hamas will “repeat the October 7 attack time and again until Israel is annihilated.” In other words, Israel is trying to defend its citizens against Islamists whose very identity is built on the destruction of the Jewish state.

Using force in the exercise of self-defence is legitimate, provided it is both necessary and proportionate. The law recognises that such use of force may inevitably involve civilian casualties. It is not inherently unlawful for a state acting in self-defence to inflict civilian casualties, so long as civilians are not deliberately targeted and the losses remain proportionate. Even high numbers of civilian casualties are not necessarily illegal under the concept of proportionality in international humanitarian law. The facts enumerated in the statement may or may not indicate infringements of the laws of armed conflict, but they are not conclusive evidence of genocide, which has an extremely high threshold.

What is ‘genocide’?

The IAGS states that Israel’s policies and actions in Gaza “meet the definition of genocide” in the Genocide Convention – without actually stating what that definition is, or carefully applying it to the situation on the ground in Gaza. Instead, the association relies on statements made by some other organisations, such as Amnesty International and Human Rights Watch, and individual lawyers, such as William Schabas, who have claimed that Israel is committing genocide. The IAGS report simply parrots others, without subjecting them to independent scrutiny or analysis. That is hardly scholarly.

Genocide was defined in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in 1948. Israel was among the first countries to sign that convention - only months after its establishment and three years after the Holocaust, which was the very reason for defining and criminalising genocide. The Genocide Convention defines genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such.” The intent to destroy a group as such is the key element of the definition.

According to the International Court of Justice (ICJ):

“[…] It is not enough to establish .. that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis […]”

There is a very important reason why the Court set up such a stringent standard regarding intent. The Court recognises that in the context of an armed conflict, it can be very difficult to distinguish between civilians and combatants. And that is even in a regular conflict, let alone one in which a belligerent organisation that deliberately disguises its combatants among civilians, uses them as human shields, and withholds humanitarian aid. Due to the gravity of the crime of genocide, the Court established a high threshold and standard of evidence to prevent the term genocide from being jeopardised and therefore losing its meaning. This threshold was further underscored in the case of Croatia v. Serbia, where the Court determined that there was insufficient evidence to demonstrate the specific intent required under the Genocide Convention.

IAGS relies in part on reports by Amnesty International. But Amnesty´s reports invent an entire new definition of genocide to take a more “holistic” approach to the application of the definition under the Convention.

Like Amnesty, IAGS infers specific intent from the statements of Israeli officials allegedly calling for the annihilation of the Palestinians in Gaza. This accusation is baseless. Most of the inflammatory remarks were directed at Hamas rather than the Palestinian people. Prime Minister Netanyahu promptly reprimanded government officials for any language that could be interpreted as genocidal, and therefore no liability can be attributed to the state for failing to prevent such statements. While some of these remarks might be reprehensible and could constitute hate speech under Israeli national laws, they are entirely incapable of establishing state-specific intent to destroy a protected group under the Convention. There is not a single document officially issued by the Israeli government containing a specific genocidal intent.

Destruction ‘in whole or in part’

Moreover, the Genocide Convention requires the destruction to be on such a scale that the Gazan Palestinians will be destroyed “in whole or in part.” But the facts do not support this requirement either.

Approximately 2.2 million people live in Gaza. According to Hamas, about 56,000 people have died during the war. This number does not distinguish between civilian and combatant casualties. The Israeli government believes at least 20,000 Hamas members have been killed. Thus, even if one were to take Hamas’s usually grossly inflated claims at face value, at most 36,000, or 1.6% of Gaza’s 2.2 million non-combatant residents have been killed during the war.

Proponents of the genocide accusation argue the phrase “in part” is sufficient to sustain the genocide charge against Israel for the 1.6% of Gaza’s deceased population. But that argument ignores a long line of international judicial decisions and the International Law Commission’s interpretation of the words “in part” to mean “at least a substantial part” of the targeted group relative to its total population. The international courts have ruled the substantiality requirement means the destruction of part of the group would be sufficiently massive to threaten the overall survival of the rest of the group. There is no evidence of any such threat to the overall population of Gaza. While the deaths of 1.6% of Gaza’s population are undeniably tragic, that figure falls well short of constituting a “substantial part” of Gaza’s total population.

Israel’s extensive efforts to limit civilian casualties

While there is absolutely no evidence of Israeli intentions to commit genocide, there is abundant evidence, ignored by IAGS, that Israel is making extraordinary efforts to reduce civilian casualties. As Prof. Steven E. Zipperstein has recently commented, if Israel truly intended to commit genocide, then it would not warn Gazan civilian before air strikes, provide thousands of tons of aid, or facilitate the administration of polio vaccines to 500,000 Gazans. No other nation in the history of human warfare has ever warned civilians (and thus also the enemy) before launching strikes, delivered tons of aid to the other side’s population (knowing much of it would be looted by enemy combatants), and helped vaccinate hundreds of thousands of the enemy population.

According to Prof. John Spencer of the Modern War Institute at West Point, the comparatively low ratio of civilians to combatants killed in the Gaza war is indicative of extraordinary care taken by the IDF to avoid civilian casualties, despite the exceptional difficulties faced by the IDF in fighting terrorists deeply embedded within, around and underneath residential and other civilian buildings in densely populated urban areas. With an estimated 1:1 civilian-to-combatant casualty ratio –compared to Mosul in 2017, where the ratio was closer to 3:1 – how, then, does the IAGS arrive at the conclusion that genocide is taking place?

To brand Israel’s legitimate war of self-defence as “genocide” is not only a travesty of law and fact, but a reckless abuse of the very concept the Genocide Convention was created to protect.

Andrew Tucker, an international lawyer based in The Hague, is Director General of the Hague Initiative for International Cooperation. Alessandro Spinillo, a specialist in international law and policy based in Madrid, is its Legal Counsel.